Building Your Tribe Beyond the Jury:
How to Include, And Not Alienate, The Judge
Jacqui Ford, Oklahoma City, OK (TLC Sept. 2013)
Since my graduation from TLC, I have committed myself to the techniques and skills that we learned. I have tried cases with courage toward creativity I would never have imagined before TLC. I am fully dedicated to the art of building the tribe, being vulnerable with my fellow tribe members, and asking them for help. The struggle I faced this year was how to take TLC to the bench.
What follows are three stories of encounters with different types of judges, and how, with help deploying TLC methods, I met the challenges of those encounters.
The Old Adversary Judge
Last summer I appeared in front of an old adversary who now sits on the bench. Like many Oklahoma judges, she is a former prosecutor, not reluctant to flex her judicial muscle against criminal defendants. I encountered this judge while defending an innocent man charged with three counts sounding in rape and sexual assault. She and I clashed from the jump.
At the outset of this case, Jim Buxton took the client fishing and conducted a legit 4-hour listening exercise over baiting hooks and casting lines. Had that fishing trip not occurred, our client would be in prison right now because I could not warm up to this adulterous man whore of a client just “hit it and quit it” as a routine practice, with no regard for the feelings of any of the women involved. What we learned about his past, his family and how he values himself as a man allowed me to forgive his boorish behavior and advocate for him to his ultimate acquittal.
But the judge did not make it easy. For the entire week of trial, it felt as if she overruled every objection I made and sustained every objection the government made. The judge threatened to throw me in jail on no fewer than three occasions and at one point, literally threw the court rules book at my head.
We fought the entire time, and I know the jurors could feel it. We had a done such a good job in building the tribe that they fought for us and found this judges behavior to be offensive. The jury foreman spoke to us at length after the trial and I know they spent time in deliberations discussing the tension and the unprofessional conduct between the judge and me. No one wants to be in a hostile environment, especially not our jurors.
I am ashamed of how I behaved with the judge — not because she did not deserve it, but because I made my tribe uncomfortable. Because I gave in to my anger at the judge, my tribe had to talk about me in deliberations. That could have gone very badly; my client could very well have gone to prison for my reactive and hateful catfight with the judge. Had the case gone to sentencing, I assure you she would have knocked my client out of the park, because I selfishly made it about me when I dealt with her.
It took some serious reflection after the trial to realize how I screwed that up. Not only do we need to use TLC methods to communicate with our juries, but we need to use the same skills for listening to our judges – and I failed to consider that. Now I imagine how hard it must be for the judge to be confined behind that bench, knowing that she had spent so many years in the trenches herself. She too was a trial lawyer and she now just gets to watch others do what she had loved doing. It would be difficult to go from being the quarterback to the referee; giving up the power to drive the action in the courtroom would be incredibly frustrating. Losing that power may explain why a judge may feel determined to exercise the new judicial power, attempting to maintain some influence over the action.
Now I know that I should have worked to find love for the judge like the love that came more naturally for my jury. Doing this work beforehand would have changed the tenor of the case, and would have conserved my energy for development of our story for the jury. Tuning into just one more person, one more role, to give my client and my jury a more peaceful experience, is now part of my routine trial prep.
The Small Town Anti-Poaching Judge
Earlier this year, I represented an 18-year-old female who had pled guilty to manslaughter. She and her boyfriend were in a heated argument when she accidentally ran him over with her Chevy pickup and killed him. Her case dominated the news in small-town Enid, Oklahoma, and the media attended every court appearance. The fair and reasonable plea offer for my client who pled guilty to the charge of manslaughter was the maximum sentence in prison. When you are unable to reach an agreed plea with the government, you have an option to plea to the Court without an agreement. The judge then decides the sentence after argument from both sides; we call it a blind plea, for civil lawyers it is similar to a bench trial. My client was too afraid of facing a jury; so a blind plea was our only option.
I did not feel welcome in Enid, OK. More than one person commented on the “big city lawyer” taking the high profile case. I knew my place and politely sat in the courtroom, appearance after appearance, waiting to be called at the heel of the docket and being made to appear for the silliest reasons at the most inconvenient times.
Her sentencing was on my mind as I traveled back to Oklahoma City from Austin after the TLC Regional Seminar there. Jim Buxton — who makes an appearance almost every time I get freaked out or nervous or pissed — drove while I sat in the passenger seat complaining. I complained about how my poor client was not going to get a fair shake on her sentencing because of me; I complained that I feared my mere presence was going to hurt her. I heard myself very much in judgment, hateful, disrespectful judgment of the Court. Jim listened, and then did what he does best; he confronted me about how I was thinking.
Through Jim’s direction and doubling, I came to realize that I had no respect for the Court and feared the Court lacked respect for me. What must it be like for the judge to see me strut in there from out of town, taking on a big case in which the media would examine his conduct along with my client’s and my own? I reversed roles with the judge, and felt the pressure on a small town judge who eats lunch with his community every day. Everyone in Enid knows his name, knew his parents, knew his kids. The judge would have to live with his community (and this prosecutor) long after the city slicker left town and the media lost interest. How scary must that be for him?
The case was riddled with “real lawyer stuff” to argue about: race, drugs, illicit sexual acts between adults and minors. But the truth of the story was, my client was just a troubled girl, seeking love from inappropriate places. Her parents, trying to not lose her completely, had tolerated her very unhealthy relationship. Had the government known of what happened behind closed doors in that relationship before the accident, the deceased would have lived – but in prison for his behavior toward my client.
The greatest truth I learned was that I was terrified for her because she was me! I was terrified of the judge because to trust him was a foreign concept. Jim’s gentle direction revealed that I lack respect for men in authority, even more so than my general lack of respect for authority. These were my issues, and were not the judge’s fault. Jim put the need to protect our friendship aside and we had a hard conversation that hurt my feelings at first, angered me and made me sad. We worked on my horse; and that prepared me to refocus so that I could serve my client instead of letting my own issues derail me from taking care of her.
On the day of my client’s sentencing hearing, I spoke to the judge, not as a judge sitting high upon the bench that frightened me, whom I knew was judging me and judging my client as if she were not worthy of saving, but as a human under pressure. We talked about the concerns of serving as a judge in a small town and his duties to the community. But I slipped back into placing it all on him – from properly acknowledging his pressure to improperly challenging him. The judge sharply reminded me to watch my step, as he knew his ethical obligations.
I took two steps back and apologized to the court, offering to allow my co-counsel to finish the argument. I humbled myself before him. I told him I was afraid that he did not like me; I told him I knew my place in his courtroom. He softened, relaxed his shoulders, unfolded his arms and he apologized to me! And then we had the real talk.
We had a discussion as if we were sitting around the kitchen table, sorting out the family problems, working on homework and catching up with loved ones. I spoke at length about the flaws of the criminal justice system as a means of healing conflict and pain. I used scene-setting techniques to show the system being an assembly line, sorting garbage from non-garbage and making piles: piles of people’s lives, their futures and their opportunities to grow.
Once I was truly honest and exposed myself for the scared little girl I was in his courtroom, this man in power reached out and helped my client. He sentenced her to a deferred sentence, wished her luck and encouraged her to follow my lead and do better for herself. This experience changed me, and I think maybe I helped change his perception and expectations too.
The Stuffy, Federal Court, Rules Judge
My first experience in federal court had come just months before, when I tried a rape case with what I believed to be an innocent client. The federal judge welcomed me to this strange new forum in what was one of the most unfair trials I have ever participated in. The case was riddled with due process issues. The jury convicted my client, and the judge sentenced him to the maximum term under the Federal Sentencing Guidelines.
The next time I appeared before this judge was with a new client who had just been convicted by a jury of 39 counts sounding in Medicare fraud, in a trial in which she was represented by a different lawyer. The client came to me desperate, claiming innocence and looking for a miracle. After fully reviewing the two-week trial transcripts and the tens of thousands of pages of discovery, we knew we had to just trudge forward with sentencing.
My client was an undereducated person who worked as an exotic dancer to pay her way through community college. She left that world behind her and ultimately became the CEO of a very successful and prosperous hospice company. The charges arose from her lack of knowledge in how to effectively run this business and bill Medicare charges correctly. In a pre-sentencing conference in chambers the judge told me that sentencing would come down to how well I answered the following question: “How does one go from the pole to CEO?” There were several people in chambers at the time: the prosecutor, the law clerk, the bailiff, all of them female, and my law partner, Jack. Everyone had quite a laugh. This infuriated me. I left there angry and dreading the sentencing hearing.
Once again, I found myself reaching out to Jim Buxton. I was some kind of pissed, so we went to go get Cokes at the local Sonic and debrief. After I raged at Jim about the judge’s flippancy toward my client, we focused on the argument I intended to make for sentencing. I had constructed a decent argument heavy on the decisional authority and federal statutes, cases and policy. Had I given that argument, it might have yielded some downward departure for my client – but there was no humanity to it. Jim candidly told me if I gave that argument, I would fail my client.
Jim challenged me to discover what really was underlying my hostility towards this judge. Was it really that awful of a question she posed? I found it offensive because it struck me where I lived and still live: I was “trash” when I was young too. I was a homeless drug addict before I went to college. I spent many nights not knowing where I would lay my head or where I would find my next meal or whether I would even make it through the night.
That was why I was so angry; my feelings were hurt. I felt that for the judge and prosecutor to judge my client in that way must mean that they would certainly judge me that same way.
Jim and I decided right then, this judge had to know. I had to find a way to tell her. How was I going to do that in a sentencing? How was that relevant? Until I could muster the courage and the way, I knew my client would go to prison for a very long time, and I would be left with more guilt and shame for not preventing such a terrible outcome.
So I threw out every bit of the law, every case, every statute, every argument about the presentence report. I walked to the podium with one piece of paper that read:
IT’S ALL ABOUT THE LISTENER
Judge: What she has done
- Hard work
- Extreme Power
What we need from her
How do we show it
- Support Group
LOVE + HOPE = JUSTICE
I told the judge how scared I was to come before her after her comments in chambers. I told her how bad they hurt my feelings. I asked her and the female prosecutor why we as women are so awful to one another when we all know how hard it is to make it in the world, especially doing it on our own. I shared my past, my addiction, my lost soul, and how I feared everyday that I was not good enough to be a lawyer, certainly if people knew the truth they would no longer like and respect me. I looked at my 70-year-old law partner, the greatest man that ever walked in my life, and told him and the judge that my success is often times accredited to my “relationships with men” and how much it hurt my feelings that to know they probably judge me that way now too.
We used positioning in the courtroom to make two piles: “trash” and “not trash.” I looked at my client, as we would an empty chair, and I spoke in the role of Society: I told her what a piece of crap she is for fighting for the American dream. I told her she was worthless because she was a dancer and would never rise above that in the world’s eyes, no matter what good she did or what positive change she made in her life. I told her, “once a whore, always a whore.”
Then I returned to role as myself and told my client:
When they take you to the trash pile, I’ll come with you. Because based on people’s assessment of you, I’m nothing but white trash too. I’m sorry that you hired me — because if this is the way I was perceived, I would hang up my court suit and quit, just go back to being a trashy junkie, since that is all I was ever meant to be anyway.
As I closed my argument I looked to the judge. I asked her to take her time in sentencing my client; and told her that I trusted her to be just and fair and asked that she sentence us based on love and hope.
My client faced over 15 years in prison; when the hearing ended, she had been sentenced to just 36 months.
What I have come to learn about all TLC skills, is that each one can be used at different stages of the trial. Sharing is not limited to voir dire: we can “show them ours” with a judge as well as with a jury, anytime we need to make a real connection. We can set the scene at any stage, not just on direct examination. We can ask questions to which answers are not necessary, and it does not have to be with the victim on cross-examination. When we find the techniques and what purpose each one serves we can weave them in and out anytime we need them.
These skills are tools that we carry in our tool belt all the time. The key is commitment to the process. Be committed to the underlying goal of discovering and telling our client’s story and the universal truth, telling it from a place of love and telling it with true trust in our listener. There is no magic formula to trying a case. There is no magic formula to dealing with judges. But when we commit to the lessons we have learned and trust the process to work, it works every time.
 A separate note is necessary regarding the commitment: I would be handicapped out here all on my own. In Oklahoma City, we have the absolute best working group and the lawyers here really do hone the skills and use them in courtrooms. Within this group, we are pushed, encouraged and straight-up called out when doing the same old pre-TLC stuff. I can get results, big results doing it the old way; but I have learned that I can change lives and deeply held perceptions when I am commit to the techniques and processes that the Trial Lawyers College teaches. I attend several TLC events a year, I spend time with TLC lawyers at home, and when I have a big case coming up, I ask for help. Fellow F-Warrior Jim Buxton, one of the most TLC committed guys I know, has mentored me in this commitment. Jim lovingly calls me out when he sees I am doing the old stuff – and he is spot on in assessing that I am afraid and in helping me work through my fear, using listening skills we all learned at TLC.
Article was featured in the fall 2016 issue of The Warrior.